Eyewitness Misidentification: The Most Unreliable Form of Evidence

Alejandra de la Fuente — November 28, 2012 @ 11:06 AM — Comments (0)

Between 1977 and 1979 the Bird Road Rapist haunted State Road 976 in Florida, attacking over 25 women.

In 1980 Luis Diaz, a husband and father of three, was named the Bird Road Rapist and convicted of eight charges of rape. The identification and testimonies from eight victims landed Diaz with multiple life sentences.

During the 26 years he was imprisoned, Diaz maintained his innocence and was adamant that he was innocent of all charges. As his story began to travel, suspicions about the case began to surface, notably because Diaz didn’t match the original description given by the witnesses.

Even though two witnesses recanted their statements, it wasn’t until 2005 that Diaz was exonerated as a result of DNA testing.

“Eyewitness misidentification is the most unreliable form of evidence; however, it’s the single greatest cause of wrongful convictions, accounting for 75 percent of convictions that have been overturned by DNA Evidence.”  -Innocence Project

More than a third of the cases with eyewitness testimony involved multiple eyewitnesses. In Luis Diaz’s case, eight women identified him as their attacker, and all eight were wrong.
Exoneree Misidentifications

Research and Science

In most criminal cases, an eyewitness is crucial to the outcome of the trial. A strong witness could essentially lead to a win. However, the research has shown that many inaccuracies lie within the practice.

During the past 30 years, psychologists have found several variables that contribute to eyewitness misidentification.  Here are a few of their findings:

Estimator vs. Systematic Variables

Gary A. Wells, an American psychologist, has conducted extensive research on eyewitness memory and identification. His Applied Eye-Witness Testimony research, in which he differentiates estimator and systematic variables, has been highly cited and used to further understand the errors of eyewitness identification.

Estimator Variables are aspects of eyewitness identification that can’t be controlled by the criminal justice system. It includes where the crime took place, visibility, and if a weapon was present during an assault. Research has shown that victims tend to focus more on the weapon than the assailant’s face during an attack.

Another major estimator variable is race. It has been noted that it’s more difficult to identify a stranger of a different race than one’s own. For example, white Americans have more trouble identifying black Americans than they do whites and vice versa. The reasoning relies more on exposure to other races rather than prejudices.

Systematic Variables are aspects that can be controlled by the criminal justice system. It includes the way lineups are conducted, how police interact with the witness, and other identification procedures. The research behind systematical variables is far more advanced than estimator variables because it is more valuable to understand what the legal system can do to prevent misidentification.

Controlling Systematic Variables

The U.S Department of Justice released Eyewitness Evidence: A Guide for Law Enforcement  in 1999 that could help improve the facilitation of identification procedures. The guide suggests how investigators should conduct themselves and the investigation from initial report of the crime to the documentation of line up results.  The research conducted has made an impact that has lead to some changes; however, in order to fully control systematic variables, there are many reforms still needed.

Sequential vs Simultaneous Lineups

Sequential lineups are conducted when the witness is shown one member of the lineup at a time, whereas, in simultaneous lineups all members are presented at the same time. Research has found less errors are made when a sequential line up is administered.

A negative factor eliminated with sequential lineups is relative judgement.  During lineups witnesses tend to compare lineup participants with one another instead of their memory of the assailant. This leads the witness to choose a person who resembles their assailant more than the others, but not the person who resembles the assailant in their memory.

Eliminating Biased Lineups

There are many different elements that contribute to a biased lineup such as line up size, fillers, and who administrates it. Luckily, there are solutions that can eliminate most biases that can lead to a misidentification.

“A lineup is biased when a witness with a poor (or absent) memory is able to guess the identity of the suspect at a rate greater than chance expectation” -Roy S. Malpass and Colin G. Tredoux

A correct lineup size and arrangement is critical to achieve a non-biased line up. The Eyewitness Evidence: A Guide for Law Enforcement suggest a minimum of five fillers during a lineup. A filler is a person who is not a suspect but is used in a lineup to eliminate errors. All fillers should match the witness’s description. A lineup will become biased when the suspect stands out among all the other members participating.

Double Blind Administration

History has shown that there are some officers of the law who are completely bias in their line of work; however, this isn’t true for all police. Even the most honorable officer can influence a witness without intentionally doing so.

Wells first suggested double blind lineups in 1988; both scientists and the Innocence Projects around the country agree it’s one of the best way to eliminate biases.

A double blind administration is one where the person administering the lineup has no idea who the suspect is. Sometimes detectives can send nonverbal signs (a smile or a frown) to a witness during the procedure and is completely unaware that he is doing so.

In a double blind the lineup, most of the nonverbal communication will be eliminated because the administrator is as unaware as the witness that the suspect may or may not be included in the lineup.

Picking Cotton

In 1985 Ronald Cotton was convicted on two counts of rape and two counts of burglary. He was sentenced to 54 years in prison.

One of his victims, Jennifer Thompson,made it a priority to study her assailant’s face during her attack. She wanted to to memorize as much about him as possible so when the time came, she would be able to identify him.

However, just like in the Diaz case, Thompson was wrong and DNA evidence is what finally proved Cotton’s innocence.

“I had contributed to taking away 11 years of this man’s life, and if indeed we had been wrong–I felt so bad.” -Jennifer Thompson

Even after it was proven that Cotton was innocent and the real perpetrator, Bobby Poole, was identified, Thompson still had difficulties accepting the fact that Cotton wasn’t her attacker.

“I don’t know. The DNA tests, the science tells me that we had the wrong guy. It was Bobby Poole. Ronald Cotton says it is not him, it was Bobby Poole. They do look very similar, it is almost frightening how similar they look to each other… I don’t know. I really don’t know. I have to accept the answer that has been given to me and put faith in our system.”


Bobby Poole            Ronald Cotton

Today, Thompson and Cotton travel the United States pushing for legal reforms. They have published a book together, Picking Cotton, which goes in depth about the experiences of both authors.

A Step Forward for Florida

In Florida eyewitness misidentification was a contributing factor in 10 out of 13 (77 percent) of the DNA exonerations, two points higher than the national average.

On Dec. 29, 2011, the Committee on Standard Jury Instruction in Criminal Cases proposed a set of instructions to be given to jurors on eyewitness identification. The proposal was adopted by the Florida Supreme Court on Nov. 21, 2012.

Instructions are to be given to jurors if eyewitness identification is a disputed issue and if requested. Jurors are asked to consider the credibility of the witness by questioning any inconsistent identifications made by the witness, if the difference in the offender’s and eyewitness’s race or ethnic group may have affected the accuracy of the identification, whether the identification was based on the witness’s memory or a result of influences or suggestiveness, and six other factors.

When the proposal was made, the Innocence Project of Florida filed comments pointing out the inadequacies of the instructions.The comment filed reads:

While the committee’s proposed jury instruction touches on a number of important considerations for a jury evaluating eyewitness evidence, the proposed instruction is inadequate in two principle ways: (1) it is not a cautionary instruction as it doesn’t warn the jury of the dangers inherent in eyewitness evidence, nor (2) does it provide any comprehensive guidance on how jurors should weigh certain factors arising in cases with eyewitness evidence.

Although there is more that can be done, IPF’s CEO, Mike Minerva, acknowledges that this is a step in the right direction.

Your Thoughts

The science and facts prove that convicting a person solely on an eyewitnesses identification and testimony can be faulty. Yet, people are still are convicted based on one person’s identification. What changes to eyewitness identification do you think should be implemented in order to prevent innocent people from being imprisoned?

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